AARGEE INDUSTRIES Vs. RESPONDENT: COMMISSIONER OF

JUDGEMENT

(1.) All these three appeals have been filed by the appellants against three different orders in appeal passed by the Commissioner of Central Excise (Appeals), Chennai.

(2.) In Appeal No. E/766/2001 the appellant challenges the order in Appeal No. 32/2001 dated 12.2.2001 where the issue involved was in regard to crediting the refund of amount of Rs. 28,94,276/ - to the Consumer Welfare Fund in terms of Section 11D of the CE Act, 1944 by the original authority vide order in original No. 45/2000 dated 28.3.2000.

(3.) Shri N. Venkataraman, learned Counsel assisted by Shri A. Vijayaraghavan, learned Consultant submitted that the Assistant Commissioner, Chengleput Division, Mudichur Road, Tambaram Chennai had held that the appellants are eligible for exemption during the year 1998 -99 and 99 -2000 respectively and allowed them the refund claim for Rs. 28,94,276/ - in respect of the goods viz. Structurals fabrications or civil works but ordered that the amount be credited to the Consumer Welfare Fund as the appellants have passed on the incidence of duty to the customers in terms of Section 11B of the CE Act, 1944. Aggrieved by this order, the appellants filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) instead of dealing with the evidence which they produced before him has misdirected himself and decided the classification and denied the exemption and ordered them to pay duty under Sub -heading 7308.50. They submitted that this was not the point raised before the Commissioner (Appeals) either by the appellants or by the Revenue. They further submitted that the Commissioner (Appeals) also passed the subsequent orders in Appeal No. 25/2001 dated 13.2.2001 and No. 24/2001 dated 13.2.2001 where there was a confirmation of duty demand of Rs. 16,64,112/ - and Rs. 32,38,070 - respectively. They have submitted that the original authority in order in original No. 45/2000 dated 28.3.2000 had classified the item under Sub -heading 7308.50 and had extended the benefit of exemption under the said entry. The original authority rejected the refund on the ground of unjust enrichment, whereas the Commissioner (Appeals) vide order in Appeal No. 32/2000 dated 12.2.2000 held that the appellants are liable to pay duty and that they have discharged duty correctly. Therefore, he held that there was no need for examining the claim of unjust enrichment.